The state Department of Transportation has expanded the definition of what it can seize via eminent domain. It long has condemned land – or other property that you can touch or see – to make way for public roads. But now it's also condemning what a judge recently called "intangible property."

How is that possible?

Well, the DOT has condemned four private bus companies' long standing rights to carry passengers over certain routes, one of which is the same path between New Britain and Hartford to be served by state's controversial new "busway" (formally named CTfastrak) slated to begin service in March.

DOT Commissioner James P. Redeker said the condemnation of the "certificates of public convenience and necessity" isn't related to the busway or its viability. He said it's a continuation of an effort dating back five years to put the companies' commuter routes out to competitive bidding, because such bidding wasn't done decades ago when the companies obtained their certificates under a non-competitive, "ancient" state regulatory system.

The bus companies say the quality of their service has never been questioned and they claim – unsuccessfully, so far – that the state shouldn't be able to seize by eminent domain the certificates that have given them the right to their routes all these years.

However it turns out – and it may end up with the state Supreme Court – the case constitutes a new chapter in Connecticut's eventful history of eminent domain. That history includes the New London v. Kelo case in which the U.S. Supreme Court in 2005 narrowly upheld the use of eminent domain to transfer land from one private owner to another for the sake of economic development.

The Kelo decision gained national notoriety and was branded by critics as an abuse of government authority.

But the state's new move to condemn "intangible property" has gone unnoticed until now, as it's been quietly contested in Hartford Superior Court by lawyers for the state and private bus operators.

The transportation department, represented by the office of Attorney General George Jepsen, last month persuaded a judge to approve its condemnation of the certificates held by Collins Bus Service Inc., Dattco Inc., Nason Partners Inc., and the New Britain Transportation Co. for routes mostly between Hartford and towns to the east and west.

On Dec. 4, Judge Trial Referee Joseph A. Shortall issued a ruling upholding the DOT's seizure of the certificates – finding that they fall within one of the categories of things that can be condemned by the government under Connecticut's eminent domain statutes: "land, building, equipment and facilities."

Shortall agreed with the DOT's claims that the definition of "facilities" is flexible enough to include a private company's right to run buses along a certain route. The companies have argued that the government can only condemn "tangible property" such as land and buildings, and not, as described by Shortall, "intangible property like the rights they have [to run buses along specified routes] by virtue of their certificates."

The four bus companies have appealed the ruling by Shortall, who's reached the mandatory judges' retirement age of 70 but still has authority to hear cases as a trial judge referee. The companies filed with the state Appellate Court – but because of its precedent-setting potential, they have asked that it go directly to the state Supreme Court.

The case is a complicated one – not just legally, but also politically because the $570-million busway plan already has many detractors who say it's too expensive and impractical. The new condemnations add the potential criticism that it is hurting private, family-owned bus companies.

"I believe the state does not have the power to take away these certificates which have been in existence" for decades, said the bus companies lawyer, Jeffrey J. Mirman. He said that state law provides administrative procedures by which a bus company's certificate can be removed "for cause" – and he said there's no cause for revocation.

"They're all family-owned companies and these people want to continue in the business of providing bus service," Mirman said. "The state should encourage private enterprise and the state shouldn't be in the business of providing services that private companies have been and continue to provide profitably."

Redeker said that the state owns the buses that the companies operate and heavily subsidizes the commuter routes. He said the DOT has a good working relationship with the companies under existing contracts with them, adding that all he's trying to do is accomplish what was begun by the DOT during the Rell administration: bring competition to the routes to obtain "the best service at the best cost." The idea is to reduce the subsidy paid by taxpayers for the commuter service, Redeker said.

The companies – particularly Dattco – would have done well under the bidding system that the state tried to impose in 2010 before the bus operators sued over it. A judge issued an injunction saying that the new competitive-bidding arrangement cannot be implemented during the litigation over it. That injunction has been extended to the present, pending the outcome of the bus companies' appeal.

That means the state's effort to put the companies' bus routes out to competitive bidding can't happen until that appeal is resolved.

Mirman, like Redeker, said he doesn't believe the state's condemnation move is aimed at promoting or protecting the success of the busway. He said it's more about the state wanting to control and coordinate the companies' bus routes without having to deal with "due process" in removing the firms' long-held legal rights under the certificates.

Busway Is 'Backdrop'

But although both sides say the case doesn't revolve around the busway, it's certainly related to it.

"The busway plays into it because, in our view, the busway covers the routes which are included in Dattco's and New Britain Transportation's certificates," Mirman said. Dattco's certificate covers the actual busway route to Hartford, he said, while New Britain Transportation has some "feeder" service to the busway from nearby towns, Mirman said.

"My view is that the [busway] route is covered by Dattco's certificate, and that Dattco has the exclusive right to operate the busway," Mirman said.

That assertion is starkly different from the state's plan to operate the busway with Connecticut transit buses.

So, obviously, something has to give on that point.

The judge in the case cited the busway as a major consideration, also.

"The backdrop for this controversy is the state's construction of what is commonly referred to as the 'busway,' a roadway devoted to express bus service between Hartford and New Britain," Shortall wrote in his Dec. 4 decision.

He said that the companies claim that "the busway incorporates many of the routes over which the companies hold the exclusive right to provide bus service, pursuant to their certificates," Shortall wrote. "Thus, the department's plans for the busway infringe on the exclusive rights the companies enjoy under their certificates."

However, Shortall said DOT can condemn the certificates based on past court cases – including a 1942 federal appeals court decision involving a dispute between the Hartford Electric Light Co. and the Federal Power Commission. In that case, the court said that "the word 'facilities' is generally regarded as a widely inclusive term, embracing everything which aids or makes easier the performance of the activities involved in the business of a person or corporation."

Shortall also said Merriam-Webster's Third International Dictionary defines "facility" as "something that makes an action, operation or course of conduct easier."

"The certificates held by the companies undisputedly fit this definition," Shortall wrote. "Not only do they make the companies' activities in operating a bus service easier; they are essential to those operations."

However, Mirman said his research of the word "facilities" in Connecticut statutes shows that it is used to describe tangible things you can see and touch, not "intangible" things such as the bus operators' rights to their bus routes.

If the bus companies lose their appeal, it means the seizure of their certificates will be upheld, and then the normal procedure in a condemnation of property would be carried out at the Superior Court level: a judge would decide, after arguments from both sides, what the state has to pay the companies for what it took.

Redeker said he recognizes that such compensation is part of the system of eminent domain. Neither he nor Mirman as willing to speculate on how many millions of dollars that might amount to.

Mirman said he doubted any of the companies would go out of business if the state prevails, because they also run charter buses and provide other services.

However, Mirman added that while the state says it wants to seize the certificates in order to get the best price for the best service, "that doesn't give them the right to circumvent the law." The law that established the "certificates of convenience and necessity" goes back a century, Mirman said, and in all the time since "the legislature hasn't seen fit to change it."